Q&A: Implementing Smoking Rules

Q The board has just implemented a new ban on smoking. However, they have indicated that those shareholders who smoke and were shareholders prior to the effective date will still be allowed to smoke in their own units, but not on the terrace. We bought our unit with a terrace for the sole purpose of being able to smoke out on our terrace and not inside our unit. Does the board need a majority shareholder vote to implement such a house rule? Is this ban on smoking on one's own terrace enforceable?”

—Smoking Outsider

A “The governing documents and the house rules of a community are subject to change through the amendment process,” says attorney Kenneth Direktor, a Fort Lauderdale-based shareholder at Becker & Poliakoff and chair of its Community Association Law Practice Group. “The Florida Supreme Court has ruled that an association may adopt amendments to its governing documents to impose certain use restrictions upon the community property and to apply such restrictions against all owners regardless of when they took title. Even if owners purchased their units with the intention of smoking on the terraces, they have to abide by the new rules of the community when enacted. There is a concern about the reasonableness and legality of any rule that creates two classes of owners.

“Assuming that the board has rule-making authority in the governing documents, a board-made rule banning smoking on the terraces is subject to a test of reasonableness. In June 2005, a Broward County trial court held that excessive secondhand smoke from a neighboring condominium unit amounted to a nuisance. With the known health risks from secondhand smoke, such as cancer and heart disease, and the possibility that the smoke may amount to a nuisance, the smoking ban is likely to be considered reasonable, especially since smokers are still permitted to smoke in their units.

“While the smoking ban may appear to be reasonable, such a restriction has never been tested in Florida appellate courts. I note that, in 2006, a Colorado court upheld an amendment to a declaration of condominium that banned smoking within the boundaries of its condominium units. While not binding to Florida courts, the Colorado case may be a very strong persuasive precedent. Although these decisions related to amendments to the declaration of condominium in condominium communities, the decisions present reasonable arguments supporting similar amendments to the bylaws of a cooperative.”

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